Gaines v. Hawkins

• Decision Date: 21 October 1969
• Docket Number: No. 12788,12788
• Citation: 170 S.E.2d 676,153 W.Va. 471
• Court: West Virginia Supreme Court
• Parties: Stanley N. GAINES v. Earl Vernon HAWKINS, etc., et al.

Page 676

170 S.E.2d 676

153 W.Va. 471

Stanley N. GAINES v. Earl Vernon HAWKINS, etc., et al.

No. 12788.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1969.

Decided Oct. 21, 1969.

Syllabus by the Court

The failure to perfect an appeal, writ of error or supersedeas by giving the bond before the Clerk of the trial court as required by law within two months from the date of the judgment or order granting the appeal, writ of error or supersedeas makes it the mandatory duty of the appellate court, under Code, 58--4--12 and Code, 58--4--14, to dismiss the appeal, writ of error or supersedeas.

Payne, Minor, Ray, Price & Loeb, Walter C. Price, Jr., John L. Ray, Charleston, for appellants.

Dean E. Lewis, Charleston, for appellee.

BERRY, Judge.

This case involves a civil action instituted in the Common Pleas Court of Kanawha County by Stanley N. Gaines against Earl Vernon Hawkins and Alice Carrine Hawkins to recover damages for alleged personal injuries to Gaines arising out of an automobile accident which resulted in a verdict in favor of the plaintiff in the amount of $12,500 upon which judgment was entered in the trial court. A petition for an appeal was filed by the defendants in the Circuit Court of Kanawha County which was granted on November 6, 1967 and provided that it should not become effective until a bond was given before the clerk of that Court in the penalty of $15,000. The bond was later reduced to $10,000 purportedly under the provisions of Code, 58--5--14, as amended, because of the insurance coverage involved. On motion of the appellee the Circuit Court on June 18, 1968 dismissed the appeal heretofore awarded for lack of jurisdiction because the bond required by the order allowing the appeal was filed in the Circuit Court instead of the trial court as required by the statutes pertaining to such matter, which are Code, 58--4--13 and 14. Upon application to this Court an appeal and supersedeas were granted on December 2, 1968 and the case was submitted for decision on briefs filed by the parties and arguments by counsel for the appellee at the September Regular Term, 1969, the brief of the appellant not having been timely filed in accordance with Rule VI, Section 1, as amended, of the Rules of Practice in the Supreme Court of Appeals.

The sole issue involved in this appeal is whether the defendants gave the required bond dated December 11, 1967 before Lewis A. Hatcher as Clerk of the Court of Common Pleas or as Clerk of the Circuit Court. This is the issue stated in the brief of the appellants which was raised by motion of the appellee to dismiss the appeal and supersedeas granted by the Circuit Court for lack of jurisdiction by virtue of appellants not having complied with the provisions of Code, 58--4--11, 12, 13 and 14 and various court rules related to these matters.

It is the contention of the appellants that the bond involved herein was filed in the proper court as required by the statutes because 'The bond given before him was signed only 'Lewis A. Hatcher, Clerk," and during the period involved in this litigation Lewis A. Hatcher was Clerk of both the Circuit Court and the Common Pleas Court by virtue of an Act of the Legislature, 1915, creating the Common Pleas Court of Kanawha County. It is also contended that when the action was instituted in the Common Pleas Court it was designated as Civil Action 8851--C thus clearly showing it was an action in the Common Pleas Court and that this number appeared on the face of the bond, therefore identifying the bond as having been given before the clerk of the Common Pleas Court. The appellants contend that when the bond was presented it was the statutory duty of Hatcher who was Clerk of both Courts to file the bond in the Common Pleas Court. Regardless of the duty of the Clerk it is the responsibility of the parties to comply with the laws in connection with the trial or appeal of any case and the record in this case shows that the bond was filed by direction in the wrong Court which gave rise to the jurisdictional question involved in this case.

The bond filed before Lewis A. Hatcher, Clerk, clearly had a certificate attached to it signed by Lewis A. Hatcher as Clerk of the Circuit Court of Kanawha County. The original record filed in this Court shows that the order entered by the Judge of the Circuit Court granting the appeal required the defendants to file the bond in the amount of $15,000 'before the clerk of this Court' in order to make the appeal effective. Admittedly the order was erroneous in specifying the wrong court but it was 'presented by counsel for the defendants' and 'inspected by counsel for the plaintiff.' The original bond is found with the papers filed in the Circuit Court and is styled 'Bond in Circuit Court of Kanawha County, West Virginia'.

It also appears from the original record that the sworn statement required in order to reduce the bond where insurance is involved was filed in the Circuit Court Clerk's Office on December 7, 1967 and not with the Clerk of the Common Pleas Court as required by Code, 58--5--14, as amended.

The original record does not show that any process, either by a summons or by court order in lieu thereof endorsed with date returnable, was ever served on the interested parties, as required by Code, 58--4--11, nor as required by Code, 58--4--12, that there was an endorsement by the Clerk of the Circuit Court on either a summons or a certified copy of the court order in lieu thereof that the bond required by Code, 58--4--13, would not be effectual until it was given before the Clerk of the Common Pleas Court with good personal security. Furthermore, there was no endorsement by the Clerk of the Common Pleas Court on said summons or a certified copy of the court order in lieu thereof that the bond had been given and listing names of sureties thereon, as required by Code, 58--4--12, nor was a certified copy of the bond forwarded to the Circuit Clerk as required by Code, 58--4--12.

Code, 58--4--15, provides that no appeal shall be heard in the Circuit Court until all proper process has been served as provided for by Code, 58--4--11, and all bonds had been taken as provided by Code, 58--4--13.

Code, 58--4--14 provides that the appeal, writ of error or supersedeas shall be dismissed whenever it appears that four months have elapsed since such date before the record is delivered to the circuit clerk, or that two months have elapsed since the date when the appeal, writ of error or supersedeas was granted before such bond is given before the clerk of the Common Pleas Court as required by Code, 58--4--12.

It appears from the original record in this case that the bond required to be filed with the Clerk of the Common Pleas Court was never filed with the Clerk of that Court and that more than two months had elapsed since the date the appeal was granted. The provisions of Chapter 58, article 4 of the Code of West Virginia, with regard to this matter are mandatory and jurisdictional. Scott v. Coal & Coke Railroad Company, 70 W.Va. 777, 74 S.E. 992; Elite Laundry Co. v. Dunn, 126 W.Va. 858, 30 S.E.2d 454. In the Elite Laundry Co. case it was held by this Court that where a petition for an appeal or writ of error was timely filed within four months with the Clerk of the Common Pleas Court of Kanawha County but was not filed with the Clerk of the Circuit Court within the four months period required by Code, 58--4--4 the appeal should be dismissed as such filing was jurisdictional. In that case, as in this case, the Clerk of the Common Pleas Court and the Clerk of the Circuit Court of Kanawha County was the same individual but in that case, as in this case, there were two separate courts and the filing of the petition for a writ of error with the Clerk of the Common Pleas Court was not a filing of the petition with the Clerk of the Circuit Court.

In the case at bar the filing of the bond with the Clerk of the Circuit Court is not a filing of a bond with the Clerk of the Common Pleas Court. It was held in the Scott v. Coal & Coke Railroad Co., Supra, case that the failure to perfect an appeal by giving the bond specified within the time required, which is now two months from the date the appeal, writ of error or supersedeas was granted makes it mandatory for the appellate court under Code, 58--4--14 to dismiss the appeal, writ of error or supersedeas.

It is true that the order granting the appeal and ordering the bond in question to be filed before the clerk of the Circuit Court was presented by the attorney for the defendants and inspected by the attorney for the plaintiff and entered by the judge granting the appeal. However, jurisdiction can never be conferred by either the court or the parties by consent or waiver, 11 M.J., Jurisdiction, § 2; Blanchard v. Twin-City Market, 157 Va. 13, 160 S.E. 310; Boggs v. Settle, 150 W.Va. 330, 145 S.E.2d 446.

The judgment of the Circuit Court dismissing the appeal for lack of jurisdiction is affirmed.

Affirmed.

CALHOUN, Judge (dissenting).

Respectfully, I dissent because I believe that the decision embodied in the majority opinion is unsupported by proper precedent and contrary to law, common sense, reason and justice. I believe also that the Court in this case has sacrificed substance, justice and reason for the sake of a slavish adherence to empty technicality.

Following the decision in Pettry v. Chesapeake and Ohio Railway Company, 148 W.Va. 443, 135 S.E.2d 729, R.C.P. 1 was amended so as to place therein the italicized portion of the following language: 'These rules govern the procedure in all trial courts of record in all actions, suits, or other judicial proceedings of a civil nature whether cognizable as cases at law or in equity, And in any appellate review of such actions, suits, or other judicial proceedings, with the qualifications and exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and...